Articles Posted in Criminal Penalties

On February 4, 2022, Michigan DUI Lawyers Ryan Ramsayer and Michael Boyle will present The ABC’s of OWI Expungement. The seminar his hosted by the Michigan Association of OWI Lawyers and will be presented via zoom. The cost to attend this seminar is $75.00 and is open to all lawyers wishing to learn about Michigan’s new DUI expungement law.

The seminar will be led by Barone Defense Firm senior associate Ryan Ramsayer and will be moderated by Michael Boyle, who is a partner at the Firm.  Mr. Boyle is also a is a Board member with the seminar’s host, the Michigan Association of OWI Lawyers.

Michigan’s new DUI expungement has an effective date of February 19th, and this will allow most people convicted of a first offense drunk driving offense to request that their conviction be expunged. It is expected that winning expungement in many courts will be a daunting prospect, and not one that should be undertaken without significant knowledge of the law combined with thorough and informed preparation together with a deft courtroom presentation. Mr. Ramsayer will be covering all these topics, and more, at the OWI expungement seminar.

Many lawyers who are not Michigan Gun Crimes Lawyers, fail to fully understand or appreciate the interplay between State and Federal firearms laws. This can lead to the catastrophic loss of rights, including the Second Amendment right to keep and bear arms.

An example of this would be the Federal Firearms Law found at 18 United States Code § 922(g)(9), which provides that even a single conviction for misdemeanor domestic violence will result in the loss of many of your Second Amendment rights, including the shipping, transporting, possession, or receipt of a firearm or ammunition that has been shipped in or affects interstate commerce.  In plain language, any domestic violence conviction will eliminate your ability to legally purchase or possess or ammunition for any purpose. This includes keeping a firearm of any kind in your home for self-defense.

Oftentimes this impact is overlooked because local attorneys are members of a State Bar and focused on State penalties.  The average State attorney doesn’t often consider Federal Penalties.  They are also often focused on the more pressing penalties of jail, probation, or fines.

The extremely tragic school shooting in Oxford, Michigan has brought the issues of gun safety and gun storage to the forefront once again. As the unfortunate story goes, it is alleged that 15-year-old Ethan Crumbley opened fire on his fellow students at Oxford High School on November 30th, 2021. It is alleged that he killed four students and injured seven others including a teacher. Crumbley is being charged with four counts of first-degree murder, one count of terrorism causing death, seven counts of assault with intent to commit murder, and 12 counts of possessing a firearm while committing a felony.

The parents of the Oxford shooter are also being charged with crimes

Crumbley’s parents are being charged for alleged crimes arising out of their son’s alleged shooting causing death and injury to others at Oxford High School. Oakland County Prosecutor, Karen McDonald, authorized four counts of involuntary manslaughter against each of Crumbley’s mom and dad. Involuntary manslaughter is a felony under Michigan law, carrying a sentence of up to 15 years in prison. This means that each parent facing four charges of involuntary manslaughter would be looking at up to 60 years in prison if convicted of all four charges.

A new comprehensive study on the effects of marijuana use and driving has demonstrated that the use of marijuana has far less impact on driving than does the use of alcohol. Despite the fact that the emerging science suggests that drivers can use marijuana and operate their vehicles safely, the DUI laws in Michigan treat marijuana as being equal to or even more dangerous than alcohol.

Part of the reason for this disparity is that the public policy behind Michigan’s DUI laws are mired in many of the archaic misapprehensions that historically existed about marijuana and its impact on driving. Now that recreational marijuana is legal in Michigan for those above 21 years of age, a rational discussion of what, if any, effect marijuana has on driving is long overdue.  To address this issue, Michael A. White and Nicholas R. Burns, preformed a meta-analysis on over 17 available marijuana studies to clarify the actual relationship between marijuana, specifically active THC, and driving.

Their study: The risk of being culpable for or involved in a road crash after using cannabis: A systematic review and meta-analyses, published in Drug Science, Policy and Law, concluded that it is likely that marijuana does not actually cause more accidents than the normal rate of accidents occurring by all drivers.  To get to this determination, they used a process called meta-analysis, which is the review of previously published studies to obtain a more comprehensive result than any single study is capable of.  For this analysis, they used 17 studies conducted between 1982 and 2020.  These studies were conducted in several countries by different researchers with differing results.  White and Burns then their own testing methodology in an effort to control for inherent biases in the prior studies.

The answer to this question depends on many factors, including the facts of your case, your prior criminal history and the discretion of the judge presiding over your case. While the phrase “innocent until proven guilty” is at the heart of our criminal justice system, it isn’t always on the heart of the Judge making the bond determination. When applied to those charged with sex crimes, Michigan jurisprudence does have limitations, especially when it comes to bond and pretrial release.

Once the prosecutor has made the decision to charge you with a sex crime, which in Michigan is called “criminal sexual conduct,” the first court hearing is called an arraignment.  The Michigan Rules of Criminal Procedure have laid out the factors to be considered and followed at the time of your Arraignment, and generally focus on two main points. The first is the likelihood you will appear in court for all future hearings, and the second is the protection of the public.  Any concerns on either of those factors will increase the financial amount of the bond, and the conditions imposed upon you.

What Happens at the Arraignment on a Charge of Criminal Sexual Conduct?

New research regarding child and adolescent sex practices shows that more kids than ever are sending and receiving sexually suggestive text messages, including nude photos. Some of these photos may be considered child pornography. Another study shows that sharing of child sexually abusive material (CSAM) is also on the rise.

When children send sexually suggestive photos of themselves to others, it’s often done consensually. However, these pictures can end up being shared many times over and fall into the wrong hands. Regarding CSAM, predatory producers of child porn and CSAM have become much more active online, finding new ways to groom and trap their victims to obtain CSAM from them.

Why is there an increase in sexting and CSAM?

The black letter law in Michigan suggests that juries have the power but not the right to exercise jury nullification.[i] Nevertheless, the practice of law is all shades of gray, and the arguments made by lawyers are often in the penumbras of black letter law.

For example, some Michigan cases have indicated that nullification may be argued where nullification is a recognized legal defense. Because a trial judge may exclude a defense attorney from presenting to the jury evidence supporting a defense that has not been recognized by the legislature[ii], the judge can preclude a lawyer from arguing for nullification.

This does not mean that the power of nullification can be taken away from the jury, and a judge cannot explicitly tell a jury that they are precluded from exercising jury nullification. In one Michigan case where a judge told the jury that jury nullification was inconsistent with the recognized power of the jury, the verdict of guilty was reversed.[iii]  In support of their reversal, the court indicate that:

In the United States, we obtained much of our initial original jurisprudence from England. This “precedence” is called the common law. Because the English common law had such an impact on the development of our law it makes perfect sense that the English common law tradition of jury nullification directly influenced early American criminal trials. In the colonies, both the right to a jury trial, and the jury’s associated nullification powers, were viewed as vital to ensuring liberty.

The Founders, all of whom had the personal experience of living under an oppressive and capricious government, also believed in the importance of the right to nullification, particularly when viewed through the lens of liberty and freedom from tyranny. As one historian observed, “The writings of Jefferson, John Adams, Alexander Hamilton, and other founders–Federalists and Anti-federalists alike–all support the belief in a jury responsible for deciding both fact and law.” Similarly, jury trials and nullification were respected throughout the early days of U.S. history.[i]

Nevertheless, as the common law developed the question remained about if and how nullification would be incorporated into our system of governance. While the right to a jury trial is mentioned repeatedly throughout our founding documents, the word “nullification” is absent from all of them. Consequently, the United States Supreme Court had to grapple with this issue, and attempt to resolve it.  However, their precedent regarding nullification has never entirely resolved the role of the jury in a criminal case or even the propriety of nullification.

As previously explained, jury nullification occurs when a jury fails to follow the instructions of the court and instead returns a verdict contrary to those instructions. UN Appeals judge and constitutional law expert Geoffrey Robertson suggests that an independent jury can disregard the strict letter of the law set forth in these instructions and return their verdict of acquittal due to feelings of “sympathy or humanity” or simply based on common sense.

Jury instructions themselves can be part of the problem. Jury instructions are summations of the law and reflect the litigants’ best efforts to distill often complex laws in chunks that can be understood and applied by the jurors when evaluating the facts presented to them at trial.

However, when it comes to criminal cases and the tacit but often necessary application of constitutional law principals, these “chunked summations” of the law are rife with potential pitfalls. According to Duke University School of Law Professor Brandon Garrett, the use of constitutional rights in jury instructions—and in evidentiary practice more generally—is a subject that deserves far more attention in the bar and in scholarship.[i]

Jury nullification occurs when a jury returns a verdict that is contrary to the law given them by the Judge. In a criminal case jury nullification occurs when the jury, while believing the accused to be guilty, nevertheless return a verdict of not guilty. Usually this happens when the jurors either don’t like the criminal law in question or don’t believe that the criminal law is being appropriately applied. When a jury does this they are thought to “judge” the law.

An example of nullification in Michigan’s recent past would be the not guilty verdicts rendered in three of the five trials against Jack Kevorkian in the late 1990s. Dr. Kevorkian was accused of helping individuals voluntarily end their lives. Called “assisted suicide,” Dr. Kevorkian had created what was referred to as a “suicide machine” that could be operated by the individual wishing to end their life. This case represents a perfect example of and instance where jurors “judged” the law unfavorably, or at least the application of that law, and returned verdicts contrary to the judge’s instructions. For a fictional portrayal of this case, with Al Pacino playing Jack Kevorkian, see: You Don’t Know Jack.

The Kevorkian cases demonstrate that in Michigan the jury has the power but not the right to nullify the law. Understanding what is meant by the statement that jurors have the “power” but not the “right” to nullify requires a much more detailed explanation of nullification, and this series of articles serves to provide this explanation.

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